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TMI Blog2022 (11) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... LB)] . Taking note of the difference in the opinions, the Larger Bench held that the three products MMNF, Nimbu Masala Soda and Nimbooz would classify under Tariff Item No. 2202 90 20 as fruit juice based drinks. Following the decision and the consensus arrived at by the Larger Bench, the appeals are allowed. - Excise Miscellaneous Application (EH) No. 85853 of 2022, 85854 of 2022, 85855 of 2022 With Excise Appeal No. 85275 of 2018, 85877 of 2019, 85254 of 2020 - A/85981-85983/2022 - Dated:- 12-10-2022 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Chirag Shetty, Advocate (Proxy), for the Appellant Shri Amrendra Kumar Jha, Deputy Commissioner, Authorised Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed that- (i) the appellant were clearing their product viz. Minute Maid Nimbu Fresh (MMNF) by wrongly classifying their product under Chapter sub-heading 220290.20 of Central Excise Tariff Act, 1985 and wrongly clearing the goods without payment of Central Excise Duty by claiming exemption under Notification No 3/2006-C.E. dated 01.03.2006 instead of classifying the said product under chapter sub-heading No 220210.20 of the Central Excise Tariff Act, 1985. (ii) on the same issue one show cause notice answerable to Commissioner of Central Excise Thane-1, was adjudicated wherein it was held that the product namely Minute Maid Nimbu Fresh (MMNF) was properly classifiable under chapter subheading 220210.20 attracting Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, as may be seen above, CESTAT have analyzed the issue from all angles namely common parlance, manufacturing process, the juice concentrate percentage, prevention of Food Alteration Rules, 1955, HSN Notes and have come to the conclusion that CSH 22021020 is a more specific heading describing the essential character of the product and in accordance with Rules 3(a) and 3(b) of the Interpretative Rules iii) On the issue of penalty, CESTAT find that the appellants had informed the Assistant Commissioner in the beginning itself vide their letter dated 5-2-2010 of their plan to manufacture MMNF and classify the same under CTH 22029020. In these circumstances, there is no scope for imposition of penalty. According Hon'ble Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the product MMNF is classifiable under Tariff Item No. 2202 10 20 and did not agree with the contention of the appellant that MMNF is not a flavoured drink. It observed that the decision of the Tribunal in the case of Commissioner of Central Excise, Bhopal v. Parle Agro Pvt. Ltd. - 2008 (226) E.L.T. 194 (Tri. - Del.) classifying Appy Fizz as a fruit juice based drink under Tariff Item No. 2202 90 20 would not help the appellant because Appy Fizz contains a far more higher and significant percentage of apple which is 23%, whereas in the case of MMNF, the juice concentrate is admittedly only 1%. Reliance placed by the appellant on the provisions of Food Adulteration Rules to contend that since the Total Soluble Solid was not less t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fruit juice content of lime or lemon juice in MMNF, Nimbu Masala Soda or Nimbooz has been indicated to be not less than 5% and the Total Soluble solids is also not less than 10%. All the three products namely MMNF, Nimbu Masala Soda and Nimbooz, satisfy the requirements of Regulation 2.3.10 or Regulation 2.3.30. These products, therefore, would classify under Tariff Item No. 2202 90 20 as fruit juice based drinks. The Mumbai Tribunal in Hindustan Coca Cola was, not justified in holding that the Regulations are not required to be examined. 65. The irresistible conclusion, therefore, that follows from both the common parlance test and the supporting legislation test is, therefore, that the three products MMNF, Nimbu Masala Soda and N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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